Abortion clinics, Public Space Protection Orders and the ECHR: Tossici-Bolt

In Tossici-Bolt & Anor v Bournemouth, Christchurch and Poole Council [2023] EWHC 3229 (Admin), the claimants, Ms Tossici-Bolt and Christian Concern, challenged the validity of a Public Space Protection Order (‘PSPO’) made by the Council in October 2022 under s 59 Anti-social Behaviour, Crime and Policing Act 2014. The PSPO designates an area around a clinic providing abortion services as a “safe zone” within which it is prohibited to engage in protests related to abortion services and other specified activities. The clinic is operated by the British Pregnancy Advisory Service and funded by the NHS.

There were two main issues:

  • whether the Order was unlawful because it exceeded the Council’s statutory powers to make PSPOs; and/or
  • whether it interfered unjustifiably with individual rights and freedoms, including the freedoms of conscience and religion, expression and assembly guaranteed by Articles 9, 10 and 11 ECHR and was therefore in breach of the Council’s duties under s 6 of the Human Rights Act 1998.

The Court pointed out that rights under Articles 9, 10 and 11 are all qualified rights rather than absolute ones:

“In each case, an interference with the right can be justified as ‘necessary in a democratic society … for the protection of the rights … of others.’ So when, as here, a PSPO interferes with the Convention rights of the protestors (Articles 9, 10 and 11) it is necessary to consider whether that test is satisfied. The test can in principle be satisfied by a need to protect the Article 8 private and family life rights of Clinic visitors and staff” [12].


“the UK Supreme Court has … affirmed that where a right to abortion exists the state has an obligation to facilitate its exercise and this includes prohibiting harm or hindrance outside abortion clinics: In re Abortion Services (Safe Access Zones) (NI) Bill [2022] UKSC 32[2023] AC 505 [115]” [14].

The Court concluded as follows:

“When making the Order the Council lawfully followed the democratic and consultative procedures prescribed by the 2014 Act. The decision-maker was entitled to conclude that the threshold conditions for making an order were satisfied. The detailed provisions of the Order are consistent with s 59(5) of the 2014 Act and with the Council’s duty under s 6 of the HRA. To the extent that the Order interferes with the human rights of the first claimant and those of non-parties on which she has relied in support of her claim the interference is justified by the legitimate aim of protecting the rights of women attending the Clinic, their associates and the staff. Both claims are dismissed” [81].

In Tossici-Bolt & Anor v Bournemouth, Christchurch and Poole Council (Amendment Judgment) [2023] EWHC 3230 (Admin), handed down on the same day, the Court refused Christian Concern permission to add an additional ground to the judicial review claim: that the Order had been made without lawful authority because it was not passed according to the Council’s Constitution but, instead, decided upon unilaterally by a single Councillor.

This post is now closed for comments.

Cite this article as: Frank Cranmer, "Abortion clinics, Public Space Protection Orders and the ECHR: Tossici-Bolt" in Law & Religion UK, 20 December 2023, https://lawandreligionuk.com/2023/12/20/abortion-clinics-public-space-protection-orders-and-the-echr-tossici-bolt/

7 thoughts on “Abortion clinics, Public Space Protection Orders and the ECHR: Tossici-Bolt

  1. The interference with the Article 9,10 and 11 rights, must be “in accordance with law”, and “necessary”. The PSPO is a type of law. So far so good. The judgment rules that the making of the PSPO was “necessary” for upholding the Article 8 rights of others. So is that “game over”? No, I say, it isn’t.

    Each individual decision to enforce the PSPO against this or that person who is alleged to have engaged in a protest or other specified activity contrary to the PSPO also has to be “necessary”, surely? Each such individual case has to be decided on its merits, its unique facts. Necessity, or proportionality, is fact-sensitive. Some prohibited activities, perhaps even some protests, might not interfere with the Article 8 rights of others at all, or enough so that enforcement was the least severe measure needed to uphold the Article 8 rights of others. In any such case, the PSPO would need to be read down, consistently with the Human Rights Act, would it not?

    So, although we’re stuck with the PSPO, we can each still challenge the contention that our particular activity was one that so interfered with others’ Article 8 rights that our own Article 9, 10 and 11 rights needed to be interfered with by enforcement of the PSPO against us in respect of that activity. Is this not so?

    • Having read the judgment I feel the short answer to your question is, ‘Yes’. But before challenging check the council’s decision process. In this case the court found that the Council have given the matter a very detailed consideration before issuing the PSPO.

      “39. When it comes to the sufficiency of the evidence, we are wholly unpersuaded that the Council’s consultation exercise was flawed in the ways alleged, nor do we consider it arguable that the Council’s evidence base was inadequate for that or any other reason. It is fair to bear in mind, as Turner J did in Dulgheriu [46], that rates of response can be misleading and that their content is apt to be driven by the respondents’ moral positions on abortion. Decisions on whether the threshold conditions are satisfied ought not to be driven by expressions of opinion, however vehemently expressed. The key issues at that stage are the behaviour, its actual impact on the quality of life of those in the locality, and the extent to which this makes it reasonable to impose restrictions. We see no evidence that the Council overlooked these points in this case. We are satisfied that the decision-making was based upon an assessment of the evidence of what was happening and how it was affecting people working at, using or visiting the Clinic, coupled with an evaluative assessment of what was needed to avoid unreasonable conduct. That is the process described in the introductory paragraphs of the Order, and we accept that it is what happened in fact.”

    • @John Allman The position is more nuanced than you suggest – there are indeed some areas in which the courts have held that an individualised assessment of proportionality in each case is required, but there are other areas where both the domestic courts and the ECtHR have held that this shouldn’t be required – in other words, that the state should be permitted to act by way of a general measure. In those areas, if the general measure is justified in itself, then the fact that it may give rise to outcomes in individual cases that would appear (taken in themselves) unjustified/disproportionate will be regarded as neither here nor there. The usual name for this is the “Animal Defenders principle”, after the 2013 Grand Chamber judgment in Animal Defenders International v. the United Kingdom (https://hudoc.echr.coe.int/?i=001-119244 at [106]-[110]). The basic reason behind it is that, as Lord Bingham put it in the House of Lords judgment in Animal Defenders ([2008] UKHL 15 at [33]), “The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.”

      The next question, of course, is in what areas does the Animal Defenders approach apply, and conversely, in what areas is an individualised proportionality assessment required. This involves a number of factors, recently summarised in M.C. v. the United Kingdom (2021) (https://hudoc.echr.coe.int/?i=001-208876 at [52]): “First, it is of importance whether a case‑by‑case examination would give rise to a risk of significant uncertainty, litigation, expense, delay, discrimination or arbitrariness. Second, the Court will take into account the legislative choices underlying the measure including, in particular, the quality of the parliamentary and judicial review of the necessity of that measure. Third, in assessing whether the particular general measure adopted fell within the margin of appreciation, the Court will have regard to whether the measure is a nuanced one which seeks to cater for concerns by distinguishing between relevant different categories on appropriate grounds and whose impact may lessen with time. Finally, the application of the general measure at issue to the facts of the case will be illustrative of its impact in practice, and is in this way material to its proportionality. But the more convincing the justification for the general measure is, the less importance the Court will attach to its impact in the particular case.”

      In the case of PSPOs, one important factor, therefore, would be that they’re made not by Parliament, but by local authorities, and do not necessarily result from a high-quality legislative-type consideration of their advantages and disadvantages – in direct contrast to e.g. the Abortion Services (Safe Access Zones) (Northern Ireland) Act 2023, which the Supreme Court held to fall within the Animal Defenders approach ([2022] UKSC 32). On the other hand, they are generally nuanced and give some discretion to local authority officers, they do address what is regarded as an important social problem, and it could reasonably said that requiring an individualised proportionality assessment in each case would make enforcement action much more difficult, and would thus give rise to expense and inconvenience, both for local authorities and for courts. However, the state’s margin of appreciation in this area –
      unlike in e.g. Animal Defenders itself – isn’t especially wide (as cases like Lăcătuş v. Switzerland (2021) (https://hudoc.echr.coe.int/eng?i=001-207377), holding that a ban on public begging was disproportionate under Art 8, graphically show), and the rights in issue – Articles 9, 10, and 11, are fundamental to a democratic society and to individuals’ identities. As to where the balance of this melange of factors would ultimately end up, it’s anyone’s guess really, but I very much suspect a first-instance court would regard the Abortion Services (Safe Access Zones) case as analogous.

  2. I have a query that is not directly related to the subject matter of the current article. Recently, a group of local residents and I have undertaken the task of creating a comprehensive booklet on the historical significance of our local churches.

    Our understanding is that a church, being a place of worship dedicated to God, does not possess any other legal “owners.” However, we have observed a concerning trend of churches being sold, demolished, or repurposed for alternative uses. This has raised questions regarding the legality of such transactions, causing widespread concern among many individuals.

    According to existing legislation, the maintenance and not an ownership of churches is exclusively entrusted to specific religious representatives. In light of this, I am curious to know if anyone has challenged the validity of any church sale contracts within their respective areas.

    Thank you for your attention to this matter. I look forward to any insights or information you may be able to provide.

  3. I would think the human rights of the clients of the services being provided has also to be taken into account.

    Specifically, that they should be free to access the services they want and need without being hectored or harassed in the process.

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